Teniente v. State

Citation169 P.3d 512,2007 WY 165
Decision Date18 October 2007
Docket NumberNo. 05-171.,05-171.
PartiesEmilio Felix TENIENTE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming
169 P.3d 512
2007 WY 165
Emilio Felix TENIENTE, Appellant (Defendant),
The STATE of Wyoming, Appellee (Plaintiff).
No. 05-171.
Supreme Court of Wyoming.
October 18, 2007.

[169 P.3d 517]

Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Assistant Attorney General. Argument by Ms. Pojman.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

HILL, Justice.

[¶ 1] A jury convicted Emilio Teniente of first-degree murder and conspiring to commit murder in the death of Joseph Lopez. On appeal, Teniente argues that multiple issues arose during trial which affected his right to a fair trial. We disagree, and affirm.


[¶ 2] Both parties similarly phrase eight issues. Teniente's phrasing is as follows:

1. Did reversible error occur when the trial court failed to make inquiry into the effect of threats of retaliation made to the jurors?

2. Did prosecutorial misconduct occur, warranting reversal?

3. Did the trial court err in admitting irrelevant information of alleged gang activity?

4. Was [Teniente] denied a fair trial, due to the receipt of hearsay testimony?

5. Was [Teniente] denied his right to confrontation by the elicitation of testimonial hearsay?

6. Did the trial court err in denying [Teniente's] motion for mistrial after the prosecutor commented on [Teniente's] exercise of his right to silence?

7. Is Wyoming Statute § 6-2-101(c) unconstitutionally vague and violative of due process, and is it unconstitutional as applied to [Teniente]?

8. Does cumulative error warrant reversal?


[¶ 3] The facts of this case are set out in detail in Magallanes v. State, 2006 WY 119, ¶¶ 3-10, 142 P.3d 1147, 1149-51 (Wyo.2006):

During the evening hours of January 17, 2004, Joseph Lopez and his younger brother, Anthony, went to the home of Emilio Teniente in Greeley, Colorado. There, they met Bobby Rojas, Magallanes and his brother, Jesse Magallanes (hereinafter "Jesse"). The six young men sat around drinking, conversing, and listening to music. After a period of time, Teniente, Rojas, Lopez, Magallanes and Jesse decided to drive to Cheyenne to party.

Jesse drove that evening, and Teniente occupied the front passenger seat. In the rear, Magallanes sat behind Jesse, Lopez sat in the middle, and Rojas sat behind Teniente. At some point during the drive to Cheyenne, Lopez made an inflammatory comment to Magallanes about his mother. Magallanes became angry and began punching Lopez. Thereafter, punches were thrown by all three occupants of the back seat. When the men reached Cheyenne, Jesse stopped the car, and he and Magallanes pulled Lopez out of the vehicle. Apparently believing they intended to leave Lopez there, Teniente told them to put Lopez back in the car because "he knows who I am."

After placing Lopez back in the car, the men went to the house where Teniente's sister Sophia lived. Sophia immediately noticed blood on Lopez's face and admonished the men for fighting. She then helped Lopez clean up and gave him a clean shirt to wear while she washed the one he had been wearing. After that,

169 P.3d 518

things calmed down between the men and they sat around drinking and talking with Sophia and one of her female friends, Vanessa Hernandez. Approximately two hours later, Teniente suggested they return to Greeley, and the five men left Sophia's house.1

Shortly thereafter, Lopez began to scold the others for hitting him earlier. He told them they should have killed him and that they needed to take care of him before they returned to Greeley because his family would get revenge for the beating he had taken. At that point, Magallanes struck Lopez, and Teniente pulled out his .25 caliber semi-automatic pistol, pointed it at Lopez's head and told him to shut up. Teniente then directed Jesse to drive to Campstool Road. When they arrived at the College Drive overpass on Campstool Road, Magallanes and Teniente had Jesse stop the vehicle under the bridge.

Magallanes removed Lopez from the car and started beating and kicking him, eventually driving him to the ground. By this time, Jesse and Teniente were outside the vehicle. While Jesse attempted to stop the fracas, Teniente passed his pistol to Magallanes and told him to "shoot that guy." Magallanes then shot Lopez twice in the head, once above the left ear and once toward the back of the head. The four men left Lopez on the road and returned to Sophia's house, where Magallanes and his brother dropped off Teniente and Rojas before heading home. Approximately forty-five minutes later, around 2:00 a.m., Sophia and Hernandez drove Teniente and Rojas back to Greeley.

Shortly before 2:00 a.m., Michael Hampton, a security officer for Frontier Refinery, left the refinery and drove east on Campstool Road. As he approached the area of the overpass, he saw what appeared to be debris on the roadway and attempted unsuccessfully to swerve and avoid it. After hitting it, Hampton stopped his vehicle and discovered that the object was the body of a young man. The Laramie County Sheriff's Office was immediately contacted.

During the ensuing investigation, law enforcement learned that Lopez had accompanied Teniente and others to Cheyenne the previous evening. Law enforcement's investigation into Lopez's murder, however, was hampered by an orchestrated effort to cover up what had taken place in Cheyenne. As part of the cover-up, Rojas, Jesse, Sophia and Hernandez told a similar fabricated story that Lopez had left Sophia's home by himself and never returned, and conveniently failed to mention Magallanes' presence in Cheyenne on the night in question. Those fabrications started to unravel when Sophia was arrested for possession of a controlled substance.

Based on information obtained from the ongoing investigation, the State charged Magallanes with the premeditated murder of Lopez and with conspiring with Teniente to commit that murder. In September 2004, a jury found him guilty on both charges. The district court sentenced Magallanes to concurrent terms of life imprisonment without the possibility of parole. This appeal followed.

For purposes of the instant appeal, we will set out additional facts as they are pertinent to the issues raised.


Issue I — Juror Note

[¶ 4] In his first issue, Teniente argues that reversible error occurred when the trial court failed to inquire into a note it received from the jury. The State contends that the trial court responded appropriately to the note and properly exercised its discretion in its treatment of it.

[¶ 5] During its deliberation, the jury sent a note to the court, which read:

Dear Judge Grant:

During our deliberation some concerns have arose about the safety and any retaliation of either family, towards any of us or

169 P.3d 519

our families. Some of us have been approached by some of the family members.

Please advise us of our course of action.

 Thank you.
                 Respectfully yours,
                 The Jury.

[¶ 6] The note referred to a specific instance when a female juror was approached during trial by Teniente's girlfriend in a public restroom. The girlfriend first introduced herself, and then mentioned that she had just had Teniente's baby and that "things were really hard." The juror did not respond, terminated contact, and immediately notified the bailiff.2 After learning of the juror's contact with Teniente's girlfriend, the court informed the juror, via the bailiff, that it was comfortable with her continued service on the jury, as long as the juror was also comfortable with continuing. The juror testified to feeling comfortable continuing, but admitted the contact did make her "a bit nervous."

[¶ 7] Teniente contends that this incident improperly affected his right to a fair trial. In analyzing this issue, we turn to a legal principle established both in our court and the United States Supreme Court. It is well settled that:

[i]n a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.

Martinez v. State, 2006 WY 20, 28, 128 P.3d 652, 665 (Wyo.2006) (quoting Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954)). Martinez further points out that in order to implicate such a presumption, there must be some "quantum of evidence indicating that an out-of-court communication or contact occurred and that it concerned `the matter pending before the jury.'" Martinez, ¶ 29, 128 P.3d at 665.

[¶ 8] Furthermore, in Skinner v. State, 2001 WY 102, 33 P.3d 758 (Wyo.2001) we cited this language with favor:

When a trial court is apprised of the fact that extrinsic influence may have tainted the trial, the proper remedy is a hearing to determine the circumstances of the improper contact and the extent of the prejudice, if any, to the defendant. The court's questioning of a juror who is the recipient of extraneous information is limited to the circumstances and nature of the improper contact, as Fed.R.Evid. 606(b) precludes the court from delving into the subjective effect of the contact on the juror's decision-making. Accordingly, an objective test should be applied in making an assessment of whether the defendant was prejudiced by the extraneous information....

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